“Violence against women in all its forms is a human rights violation. It’s not something that any culture, religion or tradition propagates.”
–Michelle Bachelet[1]
The Supreme Court of India is currently addressing a pivotal question of law that could profoundly affect the rights of millions of women: whether the marital rape exception in the penal code violates[2] the constitutional rights of married women. This is not the first challenge to this regressive provision. Despite numerous petitions[3] and committee reports[4] over the years, the law continues to deny married women the ability to prosecute their husbands for rape. The Indian rape law, as it stands today, is paradoxical. It criminalizes the act of penetration, manipulation, or inappropriate touching of a woman’s sexual body parts without her consent, or when her consent is wrongfully obtained through fear, misrepresentation, or intoxication.[5]. Additionally, it criminalizes such acts when committed against minors or women who are unable to communicate consent.
A straightforward reading of this definition reveals that the offence of rape primarily hinges on the absence of “consent” in seven key scenarios. However, the law introduces two exceptions, the second of which states: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape,” commonly referred to as the marital rape exception (MRE). This shifts the focus from the requirement of a woman’s consent to her marital status as a “wife,” effectively nullifying her right to consent to sexual acts with her husband. Non-consensual, forceful sex is a crime of the highest magnitude and must be punished, regardless of the relationship between the perpetrator and the victim. The marital rape exception (MRE) is clearly arbitrary, unlawful, and unconstitutional, as it violates a married woman’s fundamental rights to dignity, equality, life, and liberty.
Consent Cannot Be Conjugally Waived
Consent cannot be waived by virtue of marriage. When consent is assumed or ignored based solely on the conjugal relationship, it becomes coercion. Therefore, consent cannot be conjugally waived. Consent in sexual relationships is non-negotiable. It is fundamental to the legal definition of rape, requiring a woman’s voluntary and unequivocal agreement for sexual activity. The marital rape exception (MRE) is based on the flawed reasoning that, within marriage, there is a reciprocal expectation of sexual access, implying consent. While certain expectations may exist within a marriage, they do not translate into a husband’s right to engage in sex without his wife’s consent.
Such expectations can be addressed through civil remedies, such as seeking restitution of conjugal rights or initiating divorce proceedings based on the refusal of sexual access. However, these expectations cannot diminish a wife’s fundamental right to bodily autonomy and her freedom to consent. For example, in the context of sex work, individuals may be expected to provide sexual services, but they retain the right to withdraw their consent at any stage[6]. This principle of consent should apply to all individuals. Denying a wife the right to prosecute her husband for rape suggests that she is placed on a lower pedestal, deserving less protection than other women when it comes to bodily privacy.
The marital rape exception (MRE) creates an anomalous situation where forced sexual intercourse before marriage is considered rape, while the same act immediately after marriage is not. This classification, based on marital status, provides married women with less protection against non-consensual acts by their husbands compared to strangers. In fact, even women in live-in relationships have legal protections that married women do not. Abolishing the marital rape exception (MRE) is essential to ensure that married women receive the same level of protection from their husbands as they would from any other man. No amount of legal manoeuvring can justify non-consensual sexual intercourse with any individual. Rape is rape; a rapist remains a rapist—husband or not.
Marital Rape Exception: A Constitutional Contradiction
The right to bodily privacy[7] is an integral part of the right to life and personal liberty under Article 21[8] of the Indian Constitution. This right includes not only freedom from unwarranted intrusion into one’s personal life but also the autonomy to make decisions about one’s own body. The marital rape exception (MRE), by equating marital status with implied consent to sexual activity, undermines a woman’s bodily autonomy and violates her fundamental right to privacy. Additionally, it strips away her right to make informed decisions about her reproductive choices, a core aspect of her right to privacy[9].
The Article 14 of the Indian Constitution guarantees the fundamental right to equality[10], but it also allows for “reasonable classification” in law. The test for reasonable classification is two-pronged: (a) there must be an intelligible differentia between the classes, and (b) this differentia must have a reasonable nexus with the objective of the law. The marital rape exception (MRE) satisfies the first prong to the extent that it creates an intelligible distinction between husbands and other men based on the marital relationship. However, this differentiation lacks a reasonable nexus with the object of the law—criminalising non-consensual sex to protect women’s dignity and bodily integrity. The absence of consent is the foundation of the offence of rape. The decriminalization of an act that would otherwise constitute rape, based solely on the husband’s status, relies on an outdated notion that marriage implies consent for sexual intercourse. This privileging of the purported sanctity of an “institution” over the rights of the individuals involved is manifestly arbitrary and violates Article 14 of the Indian Constitution.
Furthermore, while penal laws allow wives to prosecute husbands for offenses like sexual harassment or domestic violence, they do not permit prosecution for rape. This distinction is, on its face, unlawful. Preventing a married woman from seeking recourse under rape provisions denies her the protections available to other rape victims, such as the right to compensation, free and immediate medical care, and the protection of her identity as a citizen.
The prohibition of discrimination on the basis of sex under Article 15(1)[11] of the Indian Constitution encompasses not only overt discrimination but also discrimination rooted in stereotypical understandings of gender roles[12]. The marital rape exception (MRE) is based on such stereotypical notions, which often portray husbands as entitled to sexual access to their wives, while excluding the same entitlement for wives. By permitting husbands to engage in non-consensual sex with their wives, the MRE perpetuates harmful societal norms that undermine women’s rights and autonomy. Furthermore, the offence of rape itself is inherently gender-biased, as it can only be committed by a man against a woman, reflecting long-standing societal inequalities. Therefore, the MRE violates Article 15(1) by reinforcing gender-based discrimination within the institution of marriage.
Finally, the marital rape exception (MRE) violates women’s right to self-expression as guaranteed under Article 19(1)(a)[13] of the Indian Constitution. The presumption of implied consent strips married women of their right to accept or deny sexual relations within marriage, thereby limiting their freedom of sexual expression. Thus, the MRE stands in stark contradiction to the golden trinity of fundamental rights—the right to life, the right to equality, and the right to freedom of expression—which are central to constitutional law in India.
Illusion of Institutional Preservation
One primary defence for preserving the marital rape exception (MRE) is that it is in the public interest to protect the institution of marriage. However, marriage should be viewed as a personal union, not an institutional one. The Hindu religion considers marriage to be ‘sacrosanct,’ promoting purity and good faith in conjugal life. The argument that allowing wives to allege rape would destroy the institution of marriage exaggerates its sanctity. In fact, removing the MRE would enhance the purity of the marital union.
The MRE has been challenged before, notably in Independent Thought v. Union of India (2017), where it was partially struck down concerning the rape of minor wives aged 15-18 years. The court criticized the distinction between the rape of a married and unmarried girl child[14]. This judgment debunks two crucial arguments against the removal of the MRE.
First, it is often argued that removing the MRE would create a new offense, which is beyond the judiciary’s powers. In Independent Thought, the court held that striking down part of the provision would not create a new offense. Rather, reading down the MRE would remove a legal fiction that excludes a certain group of men from the scope of the rape offense.
Second, opponents of criminalizing marital rape often argue that it would lead to undue state interference within marriage. This argument is a smokescreen designed to prevent judicial intervention. The judicial system regularly pierces the “marital veil,” as seen in cases like Independent Thought for instance.
Furthermore, in the case of Joseph Shine, the courts held that “even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny.”[15] Women cannot be denied protection from violence within their matrimonial homes under the guise of marital privacy. Violence against women occurs in both public and private spheres. Marital rape, as a form of sexual violence, often goes unreported because a wife cannot lodge an FIR. These homes, instead of being safe havens, are frequently sites of domestic abuse. Activists have long fought against the notion that “the fundamental right is to family what a bull is to a China shop,” advocating for laws against cruelty and domestic violence to ensure equal rights and protection for married women. Criminalizing marital rape is what will finally bring justice to these women.
Lessons from the World: Rape is Rape
The Indian Penal Code of 1860, enacted during British rule, has included the marital rape exception (MRE) since its inception. However, many countries, including the United Kingdom, have moved beyond this archaic notion, recognizing the offense of marital rape decades ago[16]. The European Court of Human Rights has stated, “A rapist remains a rapist regardless of his relationship with the victim.” [17]
In New York, courts have deemed the statutory MRE “unconstitutionally under-inclusive,” expanding the scope of the law to include married men who rape their wives[18]. In Canada, the Supreme Court emphasized that the relationship between the accused and the complainant “does not change the nature of the inquiry into whether the complainant consented” to the sexual activity[19]. South Africa’s penal statute explicitly states that a victim’s relationship with the perpetrator does not justify leniency in sentencing for rape[20].
While criminalizing marital rape, the Nepal Supreme Court observed: “Marriage does not mean women turn into slaves. Thus, women do not lose their human rights because of marriage. As long as a person lives as a human being, he or she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after marriage is to deny independent existence, the right to live with self-respect, and the right to self-determination.” [21]
These are just a few examples from around the world where courts have actively condemned the practice of excluding husbands from the scope of rape. India must follow the lead of these countries to liberate countless married women suffering from marital rape without legal recourse.
Bridging the Gap: Ensuring Equal Protection Under the Law
The law exempting husbands from prosecution for rape is a remnant of toxic patriarchy that must be abolished. The Supreme Court of India’s observations in Mithu v. State of Punjab highlight this necessity: “Section 303, Indian Penal Code, is an anachronism. It is out of tune with the march of the times. It is out of tune with the rising tide of human consciousness. It is out of tune with the philosophy of an enlightened Constitution like ours.” The marital rape exception (MRE) fails constitutional scrutiny, contradicting principles of equality and hindering societal progress. The Supreme Court should apply consistent standards, as in Mithu, to declare the MRE unconstitutional.
The MRE undermines the fundamental rights of married women by denying them the autonomy and dignity afforded to other women. By prioritizing marital status over consent, this provision creates an unjust disparity in legal protections against sexual violence. Striking down this archaic exception will not only align Indian law with contemporary human rights standards but also reaffirm the sanctity of marriage as a partnership based on mutual respect and consent.
In the name of culture, tradition, and family values, the patriarchy embedded in marriage has historically protected marital rape. However, there is no place for marital rape in any form of marriage or any other type of relationship.
Abhilipsa Mohanty, Young Lawyer, Odisha, India
[1] Elizabeth Braw, ‘UN Women Head Michelle Bachelet: “Gender Equality Is Good Business”’ (HuffPost, 19 August 2012) <https://www.huffpost.com/entry/michelle-bachelet-gender-equality_b_1605541> accessed 12 October 2024.
[2] Indian Penal Code 1860, s. 375; Bharatiya Nyaya Sanhita 2023, s. 63.
[3] RIT Foundation v. Union of India 2022 SCC OnLine Del 1404; Youth for Equality v. Union of India WP (C) No. 1022/2019; All India Democratic Women’s Association v. Union of India WP (C) 6024/2017; Ruth Manorama v. Union of India WP(C) No. 1119/2022.
[4] Justice J.S. Verma, Justice Leila Seth and Gopal Subramanium, Report of the Committee on Amendments to Criminal Law (2013), ch 3, para 79 <https://spuwac.in/pdf/jsvermacommittereport.pdf> accessed 14 October 2024.
[5] n 2.
[6] State (NCT of Delhi) v. Pankaj Chaudhary (2019) 11 SCC 575.
[7] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
[8] Constitution of India 1949, art 21.
[9] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 11.
[10] Constitution of India 1949, art 14.
[11] Constitution of India 1949, art 15(1).
[12] Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 1.
[13] Constitution of India 1949, art 19(1)(a); Navtej Singh Johar v. Union of India (2018) 10 SCC 12.
[14] Independent Thought v. Union of India (2017) 10 SCC 800.
[15] Joseph Shine v. Union of India (2019) 3 SCC 39.
[16] R. v. R 1991 UKHL 12 : 1991 (4) All ER 481.
[17] C. R. v. United Kingdom App No 20190/92(ECHR, 22 November 1995).
[18] People v. Liberta (1984) 64 N.Y.2d 152.
[19] R v J.A. [2011] 2 SCR 40.
[20] Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007.
[21] Forum for Women, Law and Development v. His Majesty’s Government of Nepal & Ors. Writ No. 55 of the year 2058 BS (2001-2022).
